Can same-sex partners together adopt a child in Massachusetts?

What are joint and second parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second parent adoption is when one partner adopts the other partner’s biological child.

What is the advantage of doing a second parent or joint adoption?

Both joint adoptions and second parent adoptions ensure your child has two legal parents, which often provides greater comfort and security to everyone involved.

Depending on your particular family situation, the law may not recognize both partners as legal parents without an adoption. In these cases, the non-legal parent needs special permission to make medical decisions for the child or attend school meetings, and is at risk of losing custody if the couple splits up.

Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from them even absent a will, and may be able to collect social security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Who is a legal parent?

A biological parent who has a relationship with their child is a legal parent. An adoptive parent is similarly a legal parent.

Even without a biological or adoptive connection, certain individuals are presumed to be legal parents by law. For instance, a child born to a married couple is presumed to be the child of both partners (Mass. Gen. Laws, chap. 209c, sec. 6(a)(1)). This includes same-sex couples (see e.g., Hunter v. Rose, 463 Mass. 488 (2012) (applying parentage presumption to a child born to two married women)).

Similarly, a child born to an unmarried couple is presumed to be the child of both partners so long as the couple jointly “receive[s] the child into their home and openly [hold] out the child as their child” (Mass. Gen. Laws, chap. 209c, sec. 6(a)(4). See also Partanen v. Gallagher 475 Mass. 632 (2016) (holding that a non-biological same-sex parent could bring a claim for parentage under the statute)). Essentially this means that the couple and the child live together as a family, with both partners acting as co-parents. In a groundbreaking 2016 case brought by GLAD, the Massachusetts Supreme Judicial Court held that this presumption applies equally to unmarried same-sex couples. That case, Partanen v. Gallagher (475 Mass. 632 (2016)), established that even a non-biological parent can take advantage of the presumption, recognizing that a biological connection “is not a sine qua non to the establishment of parentage [in Massachusetts]” (Id. at 640).

Finally, Massachusetts has a process by which unmarried parents can establish parentage by signing a voluntary acknowledgment of parentage (VAP) and filing it with the state office of vital statistics. Formerly, this form used gendered language (“mother” and “father”), but through GLAD’s intervention same-gender couples can now use it to establish legal parentage. For more information about VAPs, contact GLAD Answers.

Do we need to do a second-parent adoption if we are married, in a civil union, or living together?

A second parent adoption is the best way to ensure the ongoing parental rights of both parents. Even if Massachusetts law presumes you are a legal parent, another state may not respect that presumption if you or your partner moves. By contrast, adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples parenting.

Miller-Jenkins Sidebar

Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure the ongoing rights of both parents if a couple later separates. A case in point is Miller-Jenkins v. Miller-Jenkins. This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing.

In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter. Finally, however, the Virginia courts agreed that the Vermont courts had the authority to make custody and visitation decisions.

After many attempts to get Lisa to allow Janet visitation rights, in November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010. However, Lisa failed to appear at the appointed time, and an arrest warrant was issued. Lisa and Isabella still have not been found.

If same-sex parents raise a child together, but only one is the “legal” parent, then what rights does the non-legal parent have vis-à-vis the child?

These are tricky cases, but if the non-legal parent can show that they are a “de facto parent,” they will be entitled to a limited number of rights vis-à-vis their children, including visitation rights.

De facto parents may also have the right to custody (for more information, see Partanen v. Gallagher case at https://www.glad.org/work/cases/partanen-v-gallagher), but the issue has not yet been definitively decided by the courts (see Partanen v. Gallagher 2016 Mass. LEXIS 759 at *22 n.17 (2016) (noting that established case law limits a de facto parent’s privileges)).

How does a non-legal parent prove ‘de facto’ parenthood?

According to the Massachusetts SJC, a de facto parent is “one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family” (E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, cert. denied, 120 S.Ct. 500 (1999)). To establish de facto parenthood, a parent must:

reside with the child;

perform a share of the caretaking functions (“Caretaking functions” are distinct from “parenting functions.” Caretaking focuses on interactions with a child while, for example, the provision of financial support is a parenting function but not a caretaking one. A.H. v. M.P., 447 Mass. 828, 840 (2006)). at least as great as the legal parent, shaping the child’s daily routine and addressing his developmental needs;

discipline the child, provide for his education and medical care, and serve as a moral guide (Id. at 838).

All of these actions must be performed with the legal parent’s assent (Id).

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as their parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication, Protecting Families: Standards for LGBT Families.

Short of second parent adoption, how can a family protect the interests of the child vis-à-vis their non-legal parent?

There are a number of steps which can be taken, although none offer the security of a second parent adoption.

Co-parenting Agreement: A co-parenting agreement is an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability, or death. While these agreements may not always be given full effect by courts, which are bound to make custody and visitation decisions based on the child’s best interests, they are important indicators of what the couple believed was in the best interests of the child and may influence a court’s ultimate decision.

Wills: A legal parent may nominate a guardian to take custody of the child upon the parent’s death. These wishes are given strong preference by courts. However, if the child has another legal parent living, then that person will have priority over the nominated guardian.

Co-guardianship: A legal parent may choose to name the non-legal parent as a co-guardian. This process allows the non-legal parent to make the same kinds of decisions for the child that a legal parent makes, including medical decisions. This status is not permanent, and may be revoked by the legal parent.

Power of Attorney: A legal parent may choose to grant the non-legal parent power of attorney over the child, which allows the non-legal parent to make medical or financial decisions. Power of attorney documents should be updated regularly.